SURPRISE DEVELOPMENT IN THE CASE BEFORE THE SC SUPREME COURT
There has been a sudden and unexpected development in the case of the Episcopal Church's appeal to the South Carolina Supreme Court of Judge Dickson's order. This may well signal a crucial turn in the attitudes of the justices considering this case.
On last Thursday, 3 February 2022, the Clerk of the Court sent a letter to the lawyers on both sides:
Unless either party objects, the Court would like the parties to provide to the Court the minutes of the 1987 Annual Convention of the Lower Diocese in South Carolina, or any other documentation showing the proceedings of that Convention. Both parties referenced the 1987 Annual Convention and the actions that took place at the Convention at a hearing in front of Judge Dickson on November 26, 2019. See (App. 4911-12; 4956). If the request cannot be fulfilled within ten days of receipt, then the parties should inform the Court of the status of the request.
Thus, the justices of the SCSC sought the original documentation showing that the Diocese of South Carolina had adopted its own version of the Dennis Canon. That Canon, adopted by the national church in 1979, had declared that all local church property was held in trust for the Episcopal Church and its local diocese, and that if a local church left the Episcopal Church, it would forfeit its property to the trustees, the national church and its local diocese.
On today, 7 February 2022, Bert G. Utsey, III, sent an e-mail and a letter to the Clerk of the SCSC Court, providing the requested material. Utsey was the primary attorney representing the Episcopal Church side in the hearing before the SCSC on December 8, 2021.
Utsey forwarded the entire Journal of the convention meeting of 1987. Pages 90-91 give the proposed resolution on Canon XXVIII of the diocesan constitution and canons.
Page 91 of the Journal states:
All real and personal property held by and for the benefit of any Parish, Mission, or Congregation is held in trust for the Episcopal Church and the Protestant Episcopal Church in the Diocese of South Carolina. The existence of this trust, however, shall in no way limit the power and Authority of the Parish, Mission, or Congregation existing over such property so long as the particular Parish, Mission or Congregation remain a part of, and subject to, the Episcopal Church and the Protestant Episcopal Church in the Diocese of South Carolina.
This resolution was approved by two-thirds vote of both orders in the meeting.
Thus, the Diocese of South Carolina explicitly adopted a canon recognizing that all local church property was held in trust for the Episcopal Church and the local Episcopal diocese.
The justices' request for the information may well indicate their concern about hierarchy and legal accession to the Episcopal Church's Dennis Canon. If so, this would indicate a shift of the focus from whether a local parish had acceded to the Dennis Canon to whether the entire diocese had acceded to the Canon. Much of the discussion in last December's hearing concerned whether the local churches had actually acceded to the Canon. Justice Few, for instance, spent a great deal of time on this point.
Judge Richard Gergel, a U.S. District judge in Charleston, ruled in 2019 that that Episcopal Church was hierarchical and that the diocese affiliated with the national Episcopal Church remained the one and only legal heir of the historic diocese. He even issued an Injunction forbidding the breakaway contingent from claiming to be in any way the historic diocese. In 2017, the majority of the justices of the SC Supreme Court had also ruled that the Episcopal Church was hierarchical and that the Episcopal Church diocese was the historic diocese.
If the present SCSC justices agree 1-that the Episcopal Church is hierarchical (the national church has authority over the local dioceses), and 2-that the Diocese of South Carolina adopted its own Dennis Canon in 1987, twenty-five years before the schism, the reasonable conclusion would have to be that the properties of the 29 parishes in question unquestionably belong to the Episcopal Church and the Diocese of South Carolina.
Without jumping to any premature conclusions, one would have to see that the surprise developments of the past few days may very well signal a new focus on the SCSC that would probably improve the chances of the Episcopal Church side. Hierarchy and the Dennis Canon are the aces in the hands of the Church side. Now, it may well be that the justices agree these win the game over the cards played by Goodstein and Dickson. We shall see.
All of the documents above are readily available on the Internet. Go to www.sccourts.org/ACMS/ . The Appellate Case # is 2020-000986.
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UPDATE. Feb. 9, a.m. As of late yesterday, the sccourts website had not posted any response from the Anglican diocese. Note that the letter of 3 Feb. from the Clerk of the Court said "unless either party objects." There has been no word that the Anglican side has objected. Neither has there been any word from them about the contents of the 1987 journal of the convention. The Episcopal Church lawyer submitted the requested material to the Court on 7 Feb., so there is really no need for the Anglican lawyers to respond. Anyway, it is not in the new diocese's interest to show that the Diocese of South Carolina officially incorporated the Dennis Canon in its own constitution and canons long before the schism occurred.
So far there has been no response at all from the Anglican side to the letter of 3 Feb. We shall see what happens within the ten-day window the letter states.
